公共地役权法律制度研究

发布时间：2018-08-21 12:07

【摘要】：随着城镇化进程的不断推进,公共基础设施建设迅猛发展,势必出现不动产所有权人或使用权人因激增的公共设施所发生的生活便利性、安全性、周遭环境可利用率,以及相邻产权人之间的权利义务分配问题。而这种基于公共利益考量,但又逾越传统地役权和相邻关系制度调整范畴的难题,所体现出的恰是公共地役权的内容。当前,我国处理此类问题的法律制度大致有两种:一是适用《物权法》中的地役权制度,优势在于较好的保护了私人的不动产权利,但却难以满足私人不动产公用之目的;二是行政征收、征用模式,益处在于最大程度的保障了公共利益的实现,然而损害了不动产权利人的利益。故此两种途径,都存在着无法避免的缺陷。鉴于此,建议在我国《物权法》中引入公共地役权相关制度,明晰政府与私人在公共用地关系下的权利、义务划分,进而在制度层面处理为实现公共利益引发的公共用地与私人物权的纠纷。具体来说,公共地役权制度的建立,一是使得整个地役权制度体系得以完善,以"设立基础"作区分标准,将公共地役权制度(实现公共利益为基础)和传统地役权制度(实现私人利用土地的便利为基础)平行设立于地役权制度之下,弥补了传统地役权制度和相邻关系的不足;二是可以在保护私人利益的前提下最大程度的实现公共利益,该制度采用公私法相融合的模式,有助于维护私人利益、协调公共利益与私人利益之间的矛盾;三是可以降低司法成本,提高资源的利用效率。综上,本文通过论述公共地役权的基本属性、该制度当前所面临的现实困境与制度需求,结合域外相关法律制度,阐明该制度所具备的理论基础,最后就我国建立相关制度提出建议。
[Abstract]:With the continuous advancement of urbanization and the rapid development of public infrastructure construction, it is inevitable that the convenience, safety, and utilization of the surrounding environment of the real estate owner or the right to use the public facilities will occur. And the distribution of rights and obligations between neighboring property rights. This kind of difficult problem, which is based on the consideration of public interest, but surmounts the scope of adjustment of traditional easement and neighboring relation system, embodies exactly the content of public easement. At present, there are two kinds of legal system to deal with this kind of problem in our country: one is to apply easement system in "Real right Law", the advantage lies in the better protection of private real estate rights, but it is difficult to meet the purpose of private real estate public use; The second is the mode of administrative expropriation and expropriation, which benefits from protecting the realization of public interests to the greatest extent, but harming the interests of the owners of real estate rights. Therefore, there are unavoidable defects in both approaches. In view of this, it is suggested that the relevant system of public easement should be introduced in our country's Real right Law, and the division of rights and obligations between government and private under the relationship between public land and public land should be clarified. Then it deals with the disputes between public land and private real right in order to realize public interest. Specifically, the establishment of public easement system, one is to make the whole system of easement system to be perfect, with the "foundation of the establishment" as the standard of distinction, The system of public easement (based on the realization of public interest) and the system of traditional easement (on the basis of realizing the convenience of private use of land) are parallel set up under the system of easement, which makes up for the deficiency of traditional easement system and adjacent relations; Second, we can realize the public interest to the greatest extent under the premise of protecting the private interests. This system adopts the mode of the combination of the public and the private law, which helps to safeguard the private interests and coordinate the contradiction between the public interests and the private interests; Third, it can reduce the judicial cost and improve the utilization efficiency of resources. In summary, this paper expounds the theoretical basis of the system by discussing the basic attributes of the public easement, the practical predicament and the system demand that the system is facing at present, and combining with the relevant legal systems outside the country. At last, some suggestions are put forward on the establishment of relevant system in our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

【相似文献】